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The battles over access to colleges and universities for undocumented students continues. The California Court of Appeals in a decision issued yesterday ruled that a state law that allows uundocumented immigrants to pay resident fees for the University of California and other California colleges conflicts with federal law. The court reversed a lower court's decision that there were no substantial legal issues and sent the case back for trial. Law professor Kris Kobach (Missouri-Kansas City) was an attorney for the plaintiffs, out-of-state students attending California colleges.

The suit was dismissed by the Yolo County Superior Court in 2006. The Third District Court of Appeal in Sacramento held that the California law conflicts with federal law.

Click here for the opinion. Expect further appeals, first to the California Supreme Court. Stay tuned!

UPDATE The University of California has announced that it will be appealing the AB 540 appellate court ruling to the State Supreme Court. UC will continue to award AB 540 tuition exemptions during the appeal process, which could take over a year or more. The ruling has not changed the University's tuition exemption program. The announcement can be viewed at http://www.universityofcalifornia.edu/news/article/18617 See also a letter issued by General Counsel for the California Community College Chancellor's Office, which essentially says the same thing. The decision can be read at: http://www.courtinfo.ca.gov/opinions/documents/C054124.PDF

Yeah Susan, Kris Kobach is truly heroic. He sent out emails boasting about voter caging–an ILLEGAL tactic employed by the Republican Party to purge likely-Democrat voters from the polls. Disenfranchising thousands of voters is a truly heroic American thing to do--right up there with making college inaccessible for young immigrant students.

Young "immigrant" students? This Orwellian term by itself precludes any argument. This is how liberals shut off debate. FOUR LEGS GOOD, TWO LEGS BAD! ILLEGAL IMMIGRANTS GOOD! RULE OF LAW BAD!

Posted by: Susan Goya | Sep 16, 2008 4:15:29 PM

The plain language of US Code Title 8, Section 1623 is already clear. As the appeal court stated, a conference committee report is an authoritative source of Congressional Intent (Eldred v. Ashcroft, 537 U.S. 186, 209 n.16 (2003). The report could not be more specific:

Section 507--House recedes to Senate amendment section 201(a)(2) with modifications. This section provides that illegal aliens are not eligible for in-state tuition rates at public institutions of higher education.

The whole case is summed up in the following statement of the appeals court:

'Section 68130.5 thwarts the will of Congress manifest in 8 U.S.C. section 1623.'

I'll say--it's why 68130.5 was written in the first place. Everybody knew its purpose was to undermine federal law and make a mockery of the Supremacy Clause. It's disingenuous to pretend otherwise but that's what the defense counsel tried to do with a straight face. I found their arguments creative but MAJOR stretches. The fact that they submitted a law review article making a non-legal policy argument was not a good sign for them--the law just was not on their side.

Posted by: Jack | Sep 16, 2008 5:42:58 PM

'Undocumented Students Lose in California Court'

Huh? They are not in court. And they don't necessarily lose if the Plaintiffs prevail at trial. The state could then still give them the in-state rate but just would also have to offer it to out-of-state students. All federal law would require is that out-of-state legal U.S. residents not get a worse price than illegal aliens. As a practical matter, if you want to keep illegal alien tuition the same as in-state legal residents, the price for both would have to go up to account for the loss of revenue from the higher out-of-state tuition. In that case, illegal aliens 'lose', legal California residents 'lose', and out-of-state legal U.S. residents 'win'. That could prove tricky politically if they are honest about it--'We want to raise your tuition in order to keep illegal alien tuition level with yours'. That could get ugly.

Posted by: Jack | Sep 16, 2008 6:18:57 PM

It seems to me that a logical argument for the basis of offering in-state residents a lower tuition rate, is that residents of that state have theoretically been paying taxes and contributing to the overall economy of that state for many years, hence the need to establish residency for several years to qualify for in-state tuition rates. Do not the undocumented meet that requirement? After all, they do pay state income, sales, and property taxes, not to mention that some pay corporate taxes as well. Is it not akin to taxation without representation when they pay state taxes, but do not qualify for state benefits, such as in-state tuition? Also, out-of-state students usually or often return back to their home states or countries after completing their educations, there-by depriving the state of the benefit of their acquired knowledge and skills. If California or any state chooses to invest in students that will offer payback to that state through use of the knowledge that the state imparts to them at a reduced rate, why should California or any state be told that their investment is illegal, solely on the basis of the fact that the students that they are investing in had parents that came without proper documentation? Seems confiscatory to me, not to mention morally reprehensible.

Posted by: Robert Gittelson | Sep 17, 2008 8:35:13 AM

This should read "California Taxpayers and Rule of Law Triumph in California Court".

SG - Whether you agree or not, they are in fact young immigrant students, documented or otherwise. It is easy to advocate denying ILLEGALS education when you dehumanize them using such terms, but put back the human factor, and suddenly you don't have anything to say besides ad-homs and false analogies?

2.

Undocumented or Illegal is not an immutable characteristic for these students—it is subject to change. The U.S. Supreme Court recognized that the ‘illegal alien’ child of today could be the U.S. citizen of tomorrow and there was no way of determining that the undocumented child would in fact be deported hence, “it would of course be most difficult for the State to justify a denial of education to a child enjoying an inchoate federal permission to remain.” Similarly, since deportation is a federal procedure and until it is completed in cases of individual undocumented students, it is impossible for a state to deem that a person is a ‘non-resident’ for tuition purposes because s/he may just indefinitely remain in the state after establishing it as home. Hence, granting in-state tuition to undocumented students based on their residency in the state becomes a rational and reasonable objective for the state.